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Explainer
Rape, sexual assault, harassment: What's the difference?
In light of the #MeToo movement, what does the law say?
Published 17 April 2018 5:14pm
Updated 17 April 2018 5:18pm
By Nicola Henry, RMIT University
Source: The Conversation
Image: The #MeToo campaign encourages women to speak out about their experiences. (AAP)
The has supported victim-survivors to speak out about a wide range of acts that constitute sexual violence. Reports have included those of , , , , and behaviours that might into any of these categories.
These are all acts of sexual violence, but it’s important to define them separately to punish perpetrators appropriately. It’s also important these terms and the distinctions between them are clearly understood. Otherwise it makes it difficult for people to know how to label and describe their experiences.
Sexual violence
Sexual violence is an umbrella term that includes a wide range of sexual acts. The term can include rape, sexual assault, sexual harassment, unwanted touching, sexual coercion, sex trafficking, female genital cutting, child sexual abuse, child marriage, enforced sterilisation, sexual slavery, enforced prostitution and forced pregnancy.
Sexual violence occurs in every country, during times of peace as well as during and after armed conflict. Sexual violence can also be perpetrated online or via digital technologies. Technology-facilitated sexual violence includes online stalking, gender-based hate speech, image-based sexual abuse, online rape threats and online sexual harassment.
One in five women in Australia have experienced sexual violence since the age of 15.
Sexual violence disproportionately affects women and girls and is mostly perpetrated by men and boys. But it can affect anyone regardless of their gender, race, nationality, age, sexuality, disability or socioeconomic status.
According to the Australian Bureau of Statistics (ABS) 2016 , one in five women (18% or 1.7 million) and one in 20 men (4.7% or 428,800) have experienced sexual violence since the age of 15.
Rape or sexual assault
In Australia, rape is defined in gender-neutral terms as the . Although in some countries, , rape is limited to penile penetration, in all Australian states and territories, it includes penetration with the use of .
What makes confusing is the inconsistent use of terms and definitions in state and territory legislation. In the majority of Australian jurisdictions, a “sexual assault” refers to an indecent assault that does not involve penetration (and is therefore treated differently to “rape”).
However, an exception is New South Wales, which uses “sexual assault” to refer to a sexual offence involving penetration. In contrast, Queensland, South Australia, Tasmania and Victoria use the term “rape” in their criminal legislation. The Australia Capital Territory and Northern Territory refer to “sexual intercourse without consent” and Western Australia to “sexual penetration without consent”.
Although the penalties for rape or penetrative sexual assault vary across jurisdictions, these range from between ten years to life imprisonment.
Many victim-survivors don’t label their experiences as “rape”, and . This is in part because of of rape as something perpetrated by strangers in dark alleyways.
Increasingly, sanitised language, such as , is being used to describe acts that actually amount to rape.
To further complicate matters, different definitions are used in Australian national surveys on sexual violence. These tend to differ from the definitions in Australian criminal law. For instance, broadly in its Personal Safety Survey to include a number of acts, including rape. Here sexual assault is defined as:
An act of a sexual nature carried out against a person’s will through the use of physical force, intimidation or coercion, including any attempts to do this. This includes rape, attempted rape, aggravated sexual assault (assault with a weapon), indecent assault, penetration by objects, forced sexual activity that did not end in penetration, and attempts to force a person into sexual activity.
The excludes incidents of violence that occurred before the age of 15, which it defines as “sexual abuse”. Also excluded is “unwanted touching”, which it defines as “sexual harassment”.
Sexual harassment
In Australia, sexual harassment is a form of sex discrimination. Sexual harassment is , but not criminal, under Australian civil (anti-discrimination) law. In Australia, an “unlawful” act may be pursued by the affected party; whereas a “criminal” act is prosecuted by the police.
Sexual harassment is unlawful when it occurs in a specified area of public life, such as the workplace, school or university. In Australia, :
- an unwelcome sexual advance
- an unwelcome request for sexual favours
- engaging in other unwelcome conduct of a sexual nature that is offensive, humiliating or intimidating.
Examples of sexual harassment include staring or leering, unwelcome touching, suggestive comments, taunts, insults or jokes, displaying pornographic images, sending sexually explicit emails or text messages, and repeated sexual or romantic requests. It also includes behaviours that may be considered criminal offences, such as sexual assault, stalking or indecent exposure.
Under Australian civil law, the victim is called the “complainant” and the perpetrator the “respondent”. Sometimes workplaces and other organisations may be liable for “vicarious” sexual harassment if they fail to take reasonable steps to prevent the behaviour.
It’s up to the complainant to make a complaint to an independent statutory agency – such as the Australian Human Rights Commission or an equivalent state or territory equal opportunity or anti-discrimination commission or board.
The independent agency will investigate to see if the behaviour falls under the scope of the law, including whether or not the behaviour took place in the context of a specified area of public life, such as in the workplace or in educational settings.
Remedies can include compensation, reinstatement, apology, or a change in policy or practice. If conciliation fails, the case may go to a civil court or tribunal to decide the outcome. In the civil court, a sexual harasser cannot be found guilty of a criminal offence and/or sentenced to a term of imprisonment, and instead may forced to pay damages to the complainant.
If you or someone you know is impacted by rape or sexual assault, call 1800RESPECT on 1800 737 732 or visit . In an emergency, call 000.
Nicola Henry receives funding from the Australian Research Council, the Criminology Research Council and the Office of the eSafety Commissioner.
